Punjab-Haryana High Court
Rajbir Singh vs Ompati And Anr on 15 September, 2014
Author: K.C. Puri
Bench: K.C. Puri
232 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CRM M- 6263 of 2013 (O&M)
Date of Decision: 15.9.2014
Rajbir Singh
..... Petitioner
Versus
Ompati and another .... Respondents
(2) CRR(F) 29 of 2013 (O&M)
Date of Decision: 15.9.2014
Rajbir Singh
..... Petitioner
Versus
Ompati and another .... Respondents
CORAM: HON'BLE MR. JUSTICE K.C. PURI.
Present: Mr. Ajit Sihag, Advocate,
for the petitioner.
Mr. Ramender Chauhan, Advocate,
for the respondents.
K.C. PURI.J
Briefly stated Ompati wife and Sonia minor daughter moved an application under Section 127 Cr.P.C for enhancement of maintenance.
It was alleged by Ompati and Sonia that they filed petition under Section 125 Cr.P.C which was allowed vide order dated 15.4.2005 and a sum of Rs.1400/- per month was granted in favour of Ompati and Rs.700/- per month were granted in favour of Sonia minor daughter as maintenance allowance. It is pleaded that at the time of grant of maintenance allowance under Section 125 Cr.P.C Rajbir was working as Clerk and was drawing salary of Rs.4795/- per month but now he has been SANJAY 2014.09.22 14:32 I attest to the accuracy and integrity of this document chandigarh CRM M- 6263 of 2013 (O&M) (2) promoted as Food Inspector and on application of 6th pay commission, the salary of respondent has been more than Rs.30,000/- per month and he has also received arrears of pay. It is further alleged that he possesses seven acres of self-acquired land and is earning Rs.25,000/- per month and maintenance @ Rs.20,000/- per month was requested.
Rajbir Singh contested the said application and has pleaded that Ompati is divorced wife and she should have filed fresh application under Section 125 Cr.P.C. He has further pleaded that petitioner No.1 is in possession of 5 acres of land and has sufficient means. However, he had admitted that he was working as Sub Inspector but denied the salary of Rs.30,000/- per month and that he owns 7 acres of land.
Before the trial Court parties appeared as their witnesses. Learned trial Court after appraisal of the evidence accepted the application and enhanced the maintenance of the petitioner No.1 to the tune of Rs.3000/- per month and that of petitioner No.2 Sonia to the tune of Rs.2000/- per month. The said order has been challenged by filing CRR (F) 29 of 2013.
Rajbir Singh filed petition under Section 127 Cr.P.C for cancellation of the order dated 15.4.2005 passed in petition under Section 125 Cr.P.C. It is pleaded that on 23.12.2000 decree of divorce has been granted between the parties. Wife preferred appeal and the same was dismissed by this Court on 30.4.2003. It is submitted that since decree of divorce has been passed and as such status of the parties is changed. The order granting maintenance to the wife should be set aside.
That petition was resisted by wife and daughter.
SANJAY2014.09.22 14:32 I attest to the accuracy and integrity of this document chandigarh
CRM M- 6263 of 2013 (O&M) (3) Learned trial Court vide order dated 11.12.2012 dismissed the application preferred by Rajbir Singh. The said order has been challenged by filing CRM M-6263 of 2013 by Rajbir Singh.
Since both these petitions have arisen in respect of grant of maintenance to Ompati and Sonia and as such, the same are being disposed of vide this common judgment.
Learned counsel for the petitioner Rajbir Singh has submitted that after getting the decree of divorce, the wife is not entitled to get maintenance. Learned trial Court has wrongly allowed the application of Ompati and Sonia for enhancement of maintenance. The application filed by Rajbir Singh under Section 127 Cr.P.C for setting aside the order for grant of maintenance to Ompati and Sonia is required to be accepted.
It is further submitted that petitioner Rajbir Singh has remarried and has two children to maintain out of that wedlock. So, it is submitted that amount of maintenance to the tune of Rs.5000/- to wife and daughter is on higher side. It is further contended that Ompati being divorced wife is not entitled to maintenance at all under Section 125 Cr.P.C.
Learned counsel for Ompati and Sonia has supported the judgment of trial Court. It is submitted that Ompati has not remarried and the trial Court has simply stated that she is entitled to maintenance till re- marriage so, it is submitted that divorced wife is not bound to live with the husband. The wife and the daughter cannot be forced to starve.
I have considered the submissions made by learned counsel for the parties and have gone through the record of the case. SANJAY 2014.09.22 14:32 I attest to the accuracy and integrity of this document chandigarh
CRM M- 6263 of 2013 (O&M) (4) Learned counsel for the petitioner has raised the point that divorced wife is not entitled to maintenance after passing decree of divorce. However, the argument advanced by learned counsel for the petitioner is devoid of any legal force in view of bare provision of Section 125 Cr.P.C. In the explanation (b) of Section 125(1) Cr.P.C, it has been mentioned that "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. So, in view of the bare provision of Section 125(1) Cr.P.C, the divorced wife is entitled to maintenance till re-marriage. The District Judge has also observed as such.
The second question raised in the present case is whether the order of enhancement under Section 127 Cr.P.C from 1400/- per month in the year 2005 to Rs.3000/- per month in the year 2012 to the wife and from Rs.700/- to Rs.2000/- per month to the daughter Sonia is on higher side. The answer to that question is in negative. It is not disputed during the course of argument that in the year 2005, the petitioner was working as Clerk and his proved income was Rs.4795/- per month. Now, petitioner has been promoted and according to the petitioner, he has been promoted as Sub Inspector whereas according to wife and daughter, he has been promoted as Inspector. Wife and daughter have pleaded that Rajbir is drawing salary of Rs.30,000/- per month and is also earning Rs.25,000/- per month from land owned by him. Though, Rajbir Singh has denied the salary of Rs.30,000/- per month but he has not produced the salary record. The other contention raised by Rajbir Singh is that he has remarried and has to maintain the second family. However, the fact remains that Rajbir is legally and morally bound to maintain his divorced wife till re-marriage and also morally and SANJAY 2014.09.22 14:32 I attest to the accuracy and integrity of this document chandigarh CRM M- 6263 of 2013 (O&M) (5) legally bound to maintain his daughter. In view of the increase in salaries and increase in the status of petitioner, the amount of maintenance to the tune of Rs.3000/- for wife and Rs.2000/- for minor daughter cannot be said to be on higher side.
Consequently, both the petitions are without any merit and the same stands dismissed.
The litigation expenses to the tune of Rs.10,000/- ordered by this Court vide order dated 21.3.2013 passed in CRM M-6263 of 2013 are stated to have not been paid to Ompati and Sonia. They shall be entitled to recover the said amount by executing the order before the concerned District Judge/Family Court.
15.9.2014 (K.C. PURI)
SN JUDGE
SANJAY
2014.09.22 14:32
I attest to the accuracy and
integrity of this document
chandigarh